United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE.
matter is before the Court upon the joint stipulation of
dismissal with prejudice between the Plaintiff Edward Hirst
and Defendant Trans Union, LLC. [DE 14]. These parties
stipulate that all matters between them have been settled and
that Hirst's claims against Trans Union should be
dismissed with prejudice. [Id.]. The claims against
other Defendants will remain. Here, because dismissal of a
single party is appropriate under Federal Rule of Civil
Procedure 21, the Court construes the joint stipulation of
dismissal as a motion to dismiss under Rule 21. Accordingly,
the parties' motion [DE 14] is GRANTED
and the claims against Defendant Trans Union are
DISMISSED WITH PREJUDICE.
October 25, 2018, Edward Hirst filed a verified complaint in
the United States District Court for the Western District of
Kentucky alleging that the Defendants were negligent, had
committed defamation, and had violated provisions of the Fair
Credit Reporting Act (“FCRA”). [DE 1]. But the
transactions and occurrences giving rise to the action
occurred in Scott County, Kentucky, which is in the Eastern
District of Kentucky, so the matter was transferred to this
Court on October 26, 2018. [DE 4].
Trans Union answered on November 20, 2018. [DE 11]. Now,
Hirst and Trans Union stipulate that all issues between them
have been settled and ask the Court to dismiss the claims as
to Trans Union with prejudice. [DE 14].
Applicable Law and Analysis
parties do not state under which rule of civil procedure they
move for dismissal, nor do they provide any legal authority
justifying dismissal. [See DE 14]. Normally,
stipulations of dismissal are filed to dismiss an action
under Federal Rule of Civil Procedure 41(a)(2). But, as this
Court has explained, Rule 41(a) does not allow a court to
dismiss some, but not all, of the defendants in a single
case. See United States ex rel. Doe v. Preferred Care,
Inc., 326 F.R.D. 462 (E.D. Ky. 2018). In the Sixth
Circuit, a plaintiff may only dismiss an “action”
using Rule 41(a) and an “action” is interpreted
to mean the “entire controversy.” Philip
Carey Manufacturing Company v. Taylor, 286 F.2d 782, 785
(6th Cir. 1961). While some Circuits disagree with the Sixth
Circuit's interpretation of Rule 41(a), this Court is
bound by Sixth Circuit precedent. See Preferred
Care, 326 F.R.D. at 464; see, e.g., Van
Leeuwen v. Bank of Am., N.A., 304 F.R.D. 691, 693- 94
(D. Utah 2015) (discussing the circuit split and citing
this does not end the analysis, because the Court construes
filings “by their substantive content and not by their
labels, ” and, as such, this Court will consider the
current motion under Rule 21. See Coleman v. Ohio State
Univ. Med. Ctr., No. 2:11-cv-0049, 2011 WL 3273531, at
*3 (S.D. Ohio Aug. 1, 2011).
may be used for the dismissal of a single defendant. See
Taylor, 286 F.2d at 785 (“we think that [Rule 21]
is the one under which any action to eliminate” a
single defendant should be taken); see also Letherer v.
Alger Grp., LLC, 328 F.3d 262, 266 (6th Cir. 2003),
overruled on other grounds by Blackburn v. Oaktree
Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir. 2008);
Wilkerson v. Brakebill, No. 3:15-CV-435-TAV-CCS,
2017 WL 401212 (E.D. Tenn. Jan. 30, 2017) (“Rule 21 is
the more appropriate rule”); Lester v. Wow Car Co.,
Ltd., No. 2:11-cv-850, 2012 WL 1758019, at *2 n.2 (S.D.
Ohio May 16, 2012) (“the Sixth Circuit has suggested
that dismissal of an individual party, as opposed to an
entire action, is properly conducted pursuant to Rule 21, not
Rule 41”); Warfel v. Chase Bank USA, N.A., No.
2:11-cv-699, 2012 WL 441135, at *2 (S.D. Ohio Feb. 10, 2012).
Thus, the Court construes the parties' joint stipulation
of dismissal as a Motion to dismiss a single party under Rule
motion or on its own, the court may at any time, on just
terms, add or drop a party.” Fed.R.Civ.P. 21. The rule
applies where “no relief is demanded from one or more
of the parties joined as defendants.”
Letherer, 328 F.3d at 267. Normally, under the rule,
Courts must consider prejudice to the nonmoving party.
See Wilkerson, 2017 WL 401212, at *2; Arnold v.
Heyns, No. 13-14137, 2015 WL 1131767, at *4 (E.D. Mich.
Mar. 11, 2015). The inquiry overlaps with Rule 41 standards
“as guidance in evaluating potential prejudice to the
non-movant.” Wilkerson, 2017 WL 401212, at *2.
Courts determine whether the nonmoving party would suffer
“plain legal prejudice” and consider: (1)
defendant's effort and expense of preparation for trial;
(2) excessive delay and lack of diligence on plaintiff's
part in prosecuting the case; (3) insufficient explanation
for the need for dismissal; and (4) whether a motion for
summary judgment is pending.” Grover v. Eli Lily
& Co., 33 F.3d 716, 718 (6th Cir. 1994). But here,
the parties filed a joint stipulation of dismissal and, a
result of the joint stipulation, there is technically no
even after considering the relevant factors, it is clear that
neither party will suffer “plain legal prejudice”
as a result of dismissal. First, since this litigation is in
its infancy, the parties have likely spent little to no
effort preparing for a trial. In fact, even though Trans
Union has answered, there is no scheduling order in this
matter, no trial date has been set, and the formal discovery
process has not begun. As such, the first factor weighs in
favor of dismissal.
there is no indication of a lack of due diligence on the
Plaintiff's part. This action was filed on October 25,
2018. The Plaintiff has already settled this matter with
Trans Union. As such, it appears that the Plaintiff is making
a good faith effort to litigate the matter diligently and
engage in settlement discussions with the Defendants. As a
result, the second factor weighs in favor of dismissal.
Hirst and Trans Union have notified the Court that they have
reached a settlement of all claims. As such, there is a
sufficient explanation for the dismissal and there have been
no counterclaims or cross claims filed by or against Trans
Union. As such, there is no need to require Trans Union to
continue be a party to this action. The third factor weighs
in favor of dismissal.
and finally, there is no motion for summary judgment pending
in this action, ...